* * * JUDICIAL APPEAL PENDING * * * County of Santa Clara (PERB 2876M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
REGISTERED NURSES PROFESSIONAL
ASSOCIATION,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 521,
Charging Parties,
v.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-1796-M
PERB Decision No. 2876-M
October 17, 2023
Appearances: Weinberg, Roger & Rosenfeld by Kerianne R. Steele and Xochitl Lopez,
Attorneys, for Registered Nurses Professional Association and Service Employees
International Union Local 521; Jackson Lewis by Gina M. Roccanova and Gabriel N.
Rubin, Attorneys, and County of Santa Clara Office of the County Counsel by James
R. Williams, Richard M. Shiohira, and Samuel J. Cretcher, Attorneys, for the County of
Santa Clara.
Before Krantz, Paulson, and Nazarian, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on cross-exceptions to a proposed decision of an administrative law
judge (ALJ). The dispute arose in the early months of the COVID-19 pandemic, and it
centers on the nature of an employer’s bargaining obligations when faced with an
emergency. Respondent County of Santa Clara argues that the pandemic suspended
its duty to afford Registered Nurses Professional Association (RNPA) and Service
* * * JUDICIAL APPEAL PENDING * * *

2
Employees International Union Local 521 (SEIU) (collectively, the Unions) notice and
an opportunity to bargain regarding emergency measures. The Unions disagree.
PERB’s Office of the General Counsel (OGC) issued a complaint alleging that
the County violated the Meyers-Milias-Brown Act (MMBA) when it changed terms and
conditions of employment, implemented new policies, and applied or enforced existing
policies in a new way, while failing to bargain in good faith with the Unions over these
decisions and/or their negotiable effects.1 The complaint also alleged that the County
failed to respond to requests for information and bypassed the Unions by dealing
directly with bargaining unit employees.
The ALJ held a 19-day formal hearing and issued a proposed decision
concluding that even though the pandemic qualified as an emergency within the
meaning of MMBA section 3504.5, the County nonetheless violated its bargaining
obligations. The ALJ found that most of the County’s changes involved mandatory
bargaining subjects and the County therefore had a duty to bargain over the decision
itself. In contrast, the ALJ found that one decision involved a non-mandatory
bargaining subject, meaning the County only had a duty to bargain over the
implementation and effects of its decision.2
1 The MMBA is codified at Government Code section 3500 et seq. All further
statutory references are to the Government Code unless otherwise indicated.
2 “Non-mandatory” describes subjects about which parties need not bargain,
although they may choose to do so. (Cerritos Community College District (2022)
PERB Decision No. 2819, p. 19 (Cerritos).) These topics can equally be referred to as
being “permissive,” or as falling outside the “scope of bargaining” or “scope of
representation.” (Ibid.) Although such topics are sometimes labeled “non-negotiable,”
that is imprecise because it could also mean illegal bargaining subjects.

3
Having reviewed the record and considered the parties’ arguments, we
conclude as follows: (1) The County could take necessary measures to save lives
without first reaching an impasse or agreement with the Unions, but it nonetheless had
a duty to provide notice and an opportunity to bargain in good faith to the extent
practicable in the particular circumstances; and (2) The County failed to comply with
this duty.3
FACTUAL AND PROCEDURAL BACKGROUND4
The County is a public agency within the meaning of MMBA section 3501,
subdivision (c). Among the County’s many functions, it provides medical services
through a county health system that includes the Santa Clara Valley Medical Center
(SCVMC) hospitals and clinics.
RNPA represents a unit of approximately 3,000 registered nurses (RNs)
working for the County. SEIU represents a unit of approximately 11,000 County
employees, including Licensed Vocational Nurses (LVNs), Community Workers, and
Facilities Maintenance Representatives.
3 The ALJ also sustained the claim for failure to provide information and
dismissed the direct dealing claim. Because no party challenged the ALJ’s proposed
order requiring the County to supply the Unions with information they requested, we
incorporate that order into our remedy without expressing any opinion on it.
Furthermore, we exercise our discretion not to resolve the Unions’ exception regarding
direct dealing, as resolving that claim would not impact our order even were we to
sustain the exception. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 3
(Accelerated Schools).)
4 The parties accede to most of the ALJ’s factual findings, which we incorporate
and supplement below. While the County characterizes some of its exceptions as
involving factual issues, most are mixed issues of fact and law.

4
At all relevant times, the County had Memoranda of Understanding (MOUs) in
effect with both RNPA and SEIU. Sections 8.14 and 8.15 of the County-RNPA MOU
covered float assignments to specified SCVMC locations. Section 8.11 and Appendix
E, Section E.17.12 of the County-SEIU MOU covered float differentials at specified
SCVMC locations.
I. 	The County and State Issue Initial COVID-19 Orders
On February 3, 2020,5 the County Director of Emergency Services declared an
emergency in response to COVID-19. Even before then, the County had activated its
Emergency Operations Center to coordinate public health responses to the pandemic.
On February 10, the County Board of Supervisors ratified and extended the
February 3 emergency declaration.
On March 4, California Governor Gavin Newsom declared a state of emergency
due to COVID-19.
On March 16, the County issued a shelter-in-place order, which it amended on
March 31. This order required all individuals in the County to shelter in their places of
residence and leave only to provide or receive essential services or perform essential
work. The order directed the cessation of non-essential business at physical facilities.
II. 	The County Scales Back Health Care Services
Beginning in mid-March, the County reduced the need for on-site staff at
County clinics by announcing new ambulatory and surgical care guidelines, converting
many appointments to phone visits, and cancelling many procedures.
5 All dates hereinafter refer to 2020 unless otherwise noted.

5
On March 25, the County e-mailed nurses stating that the County anticipated
scaling back services at several SCVMC clinics.6 The e-mail stated the County
planned to create a labor pool through which nurses would be diverted to other
facilities. County management asked nurses to rank their preferred facilities.
In or around late March or early April, the County scaled back services at some
SCVMC clinics.
The County did not afford the Unions advanced notice of the above actions.
Nonetheless, on March 30, SEIU e-mailed the County about rumors of planned
closures and related reassignments. SEIU asked to discuss the decision’s impact
before any clinic closure or staffing changes occurred.
On April 7 and 9, RNPA requested to bargain with the County about how the
County decision to scale back clinic services would impact nursing staff.
III. 	The County Amends Its Policies on Disaster Service Workers
The California Emergency Services Act (CESA; Gov. Code, § 3100, et seq.)
designates all public employees, including county employees, as disaster service
workers (DSWs). Section 3100 states CESA’s purpose as follows:
“It is hereby declared that the protection of the health and
safety and preservation of the lives and property of the
people of the state from the effects of natural, manmade, or
war-caused emergencies which result in conditions of
disaster or in extreme peril to life, property, and resources
is of paramount state importance requiring the responsible
efforts of public and private agencies and individual
citizens. In furtherance of the exercise of the police power
of the state in protection of its citizens and resources, all
public employees are hereby declared to be disaster
6 Except where context dictates otherwise, “nurses” includes RNs and LVNs.

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service workers subject to such disaster service activities
as may be assigned to them by their superiors or by law.”
The County’s Emergency Management Ordinance likewise designates all
County employees as DSWs and provides that all County officers and employees are
“charged with duties incident to the protection of life, property, or environment” in the
event of an emergency.
In December 2008, the County amended its Policy and Procedure Manual by
adding a policy titled “County Employees serving as Disaster Service Workers,” which
we refer to as the 2008 policy. It spans just over 2 pages and includes 10 questions
and answers labeled as “frequently asked questions” (FAQs).
On or around April 13, 2020, the County issued three documents related to
DSW matters without affording the Unions notice or an opportunity to bargain. We
refer to these, collectively, as the 2020 documents. While they included some
language based on the 2008 policy (as well as other language based on the CESA
and the Labor Code), the 2020 documents also included significant provisions that
added to or otherwise differed from those sources. The 2020 documents are lengthy,
confusing, and difficult to summarize, in part because two of the three 2020
documents contained FAQs, each of which differed substantially from the FAQs in the
2008 policy. We summarize the three documents as follows.
A. 	Updated Document Titled “County Employees Serving as Disaster
Service Workers”
This document updated and substantially altered the 2008 policy bearing the
same name. The updated 2020 version is much longer than the 2008 document,
spanning 17 pages. Two of these pages include FAQs. The updated FAQs are

7
numbered 1-4 followed by 6-7, with number 5 apparently omitted in error. Some of the
FAQs in the updated document resemble FAQs in the 2008 document, but others
diverge sharply. One significant difference is apparent in comparing Question No. 6 in
the two versions. In the 2008 policy, FAQ No. 6 reads:
“What is the responsibility of the DSW?
“When the County Executive proclaims a countywide
emergency, employees need to take care of their families
first and ensure their safety; follow their department's
reporting instructions; be prepared to be assigned to any
type of disaster service activity. This assignment may be
consistent with the employee's normal work duties and/or
may require the employee to work at locations, times and
conditions, other than the employee's normal assignment.”
(emphasis added.)
In contrast, the new version’s FAQ No. 6 reads:
“Can I refuse a Disaster Service Worker assignment?
“All County employees are obligated to serve as Disaster
Service Workers under the California Constitution and state
law [citation omitted]. County Disaster Service Workers
must perform a Disaster Service Worker assignment
faithfully. This is a condition of employment, and therefore,
failure to accept and/or perform a Disaster Service Worker
assignment may lead to discipline, including termination of
employment. An employee cannot refuse a Disaster
Service Worker assignment unless the employee has a
legitimate qualifying reason, which the County must
approve.” (emphasis added.)
B. 	Document Titled “Disaster Service Worker County Employees Frequently
Asked Questions Sheet COVID-19 Pandemic”
In contrast to the County’s general DSW policy discussed immediately above,
this four-page document was specific to the immediate COVID-19 emergency. It
contained only FAQs, none of which were the same as the FAQs in the 2008

8
document or the 2020 update discussed above. Some of the FAQs, however, were
relevant to the County’s threat of discipline for turning down a DSW assignment
without approval. Specifically, the COVID-specific FAQs stated that an employee
could be approved to refuse a DSW assignment during the COVID-19 emergency
based on being the sole parent of a child whose school or daycare closed, but an
employee would not be approved merely based on living with a medically vulnerable
family member.
C. 	Document Titled “County Employee Serving as Disaster Service Worker
(DSW) Deployment Procedures”
This single-page document covers the internal procedures that the County’s
Personnel Unit and the County’s various departments must follow when interacting
with one another over DSW deployments.
IV. 	The County Assigns Nurses to Privately-Owned Skilled Nursing Facilities
In late March and early April, skilled nursing facilities (SNFs) and long-term care
facilities experienced staffing shortages and a rapid increase in COVID-19 infections.
The County considered several options to address these circumstances, including
establishing County-run SNFs and assigning County employees to work at
privately-owned SNFs.
On March 27, the County’s Director of Ambulatory Quality Education and
Standards, Ofelia Hawk, e-mailed several managers. Hawk’s e-mail requested that
nurses volunteer for assignment to potential County-run SNFs. County managers
shared Hawk’s message with nurses, and several nurses responded by volunteering
to help. The County did not notify the Unions prior to distributing Hawk’s e-mail
message.

9
The County created a nurse labor pool for possible assignment to SNFs. This
pool primarily included nurses who either volunteered or who worked at clinics where
the County had scaled back services. As of March 27, the County had made no
decision regarding whether pool nurses might be assigned to privately-owned SNFs
and/or to potential County-run SNFs.
On April 2 and 3, the County trained several nurses in preparation for assigning
them to SNFs.
Two privately-owned SNFs located in the County, The Ridge and Canyon
Springs, had particularly acute staffing needs. On April 4, The Ridge administrator
Sean Kimball e-mailed County Administrator Nelda David, stating: “We need staff
ASAP. Most of our nurses are getting sick. We’re down to one nurse and our [Director
of Nursing] this morning. We could use all the help right now!” Around the same time,
Canyon Springs administrator Benton Collins informed the County that his facility was
experiencing a COVID-19 outbreak and a severe staff shortage that would require
patients to move to County hospitals.
The County was concerned that staffing shortages at The Ridge and Canyon
Springs would require the SNFs to evacuate patients to County hospitals. The County
believed evacuation would spread infection to County hospitals, decrease the number
of acute hospital beds available for patients needing a higher level of care, and result
in poor outcomes—including death—for transferred patients. As a result of these

10
concerns, the County decided on April 6 to assign nurses at least to Canyon Springs,
and possibly to The Ridge as well.7
The Unions learned of the County’s SNF assignment decision when they
received an e-mail message, titled “Courtesy Notice on DSW assignments,” that
County Labor Relations Director Matthew Cottrell sent at 1:25 p.m. on April 6. Both
Unions responded to Cotrell’s e-mail message within several hours, and both Unions
requested to bargain regarding the County’s decision.
On April 7, the County met with RNPA to discuss nurse assignments to SNFs.
During this meeting, RNPA first learned that nurses were already on their way to begin
their first shift at Canyon Springs. RNPA requested to bargain the terms and
conditions of employment surrounding the assignment, including safety protocols, but
the County was unwilling to do so. RNPA expressed outrage that the County assigned
7 The County reached a staffing agreement with Canyon Springs on April 6, but
never reached an agreement with The Ridge. Although one County nurse worked at
The Ridge for a single shift on April 7, the parties dispute whether that was an
inadvertent miscommunication or part of the County’s alleged unilateral changes. The
nurse involved, Crystal Mana-Ay, received an April 6 text message directing her to
report to The Ridge the next day but also indicating that The Ridge had not yet signed
a contract, and promising Mana-Ay that she would receive later confirmation. Mana-Ay
never heard anything further and therefore reported to The Ridge on April 7. The
County informed Mana-Ay later that day that she should not return to The Ridge, and
thereafter the County did not assign any other nurse to work there. Ultimately, it does
not matter how we characterize these facts, as Mana-Ay’s shift at The Ridge was just
one of multiple SNF assignments over multiple weeks; the other assignments were all
to Canyon Springs. Because the County admits that the Canyon Springs assignments
were intentional, we need not resolve the parties’ dispute about whether Mana-Ay’s
single shift at The Ridge was inadvertent.

11
nurses to perform potentially dangerous duties without providing RNPA notice and
opportunity to bargain over safety precautions.
Canyon Springs personnel oriented County RNs who began working there and
allowed them to shadow other staff. Some of the RNs who worked at Canyon Springs
e-mailed Hawk after their shifts, raising concerns about inadequate training, lack of
personal protective equipment (PPE), and staffing ratios.
Between April 7 and 24, County representatives met with SEIU multiple times to
discuss SNF assignments. In these discussions, the County listened to SEIU’s
concerns and proposals, and answered some of SEIU’s questions, but denied that the
meetings were bargaining sessions. The County did not submit any written proposals
to SEIU.
On April 12, SEIU sent the County a proposed side letter on selection for DSW
work. As part of its written explanation, SEIU stated:
“Based on our experience troubleshooting the Skilled
Nursing Facility (SNF) assignment and now seeing many
different DSW assignments being implemented throughout
the County we believe a meet and confer discussion about
creating a framework about how we will work together to
ensure the safety of the public and our members is urgently
needed. While the current processes in place used to
resolve issues can be effective we don't believe they are
sufficient, nor are they expeditious enough to ensure a safe
working environment for County employees, as exemplified
by the SNF assignment . . . . a draft side letter is attached
for your review.
“We would like to schedule a meeting as soon as possible
to discuss a written agreement that would outline a set of
agreed upon commitments throughout this emergency.
[SEIU] and its members are unequivocally committed to
protecting the health and safety and preservation of the

12
lives and property of the people of the County of Santa
Clara from the effects of the COVID-19 virus, which if not
abated could result in conditions of disaster or in extreme
peril to life, property, and resources.
“In addition to being required by law, meeting with the
employees' labor representatives and leadership will help
assure that the County of Santa Clara has the benefit of the
union's expertise in foreseeing and preventing avoidable
exposure to COVID19 by represented employees, patients
and the public. This is why we are making ourselves
available any day of the week, any hour of day, to meet via
video conferencing to discuss these important matters.
Please contact us immediately to schedule this. We can
arrange the Zoom call using our account.
[¶] . . . [¶]
“[W]e are still very concerned about the idea of having our
members, public employees, staff a private for
profit operation, especially where County resources are
already stretched to the limit and we face concerns about
PPE shortages in County facilities. We believe this
deserves further discussion and consideration. We are
confident we can come to an agreement on this specific
issue concurrently to a broader agreement about Disaster
Service Worker assignments no matter where they are.”
On April 14, the County e-mailed SEIU in relevant in part:
“The County is also operating under Government Code
Section 3504.5(b) (MMBA emergency exception), pursuant
to the declared local emergency, the County will provide
notice and opportunity to meet ‘at the earliest practicable
time,’ but we have no obligation to meet and confer on
DSW assignments or enter into sideletters regarding such
matters. The County will notify SEIU and, by extension, all
other labor organizations, of its responsible, thoughtful, and
immediate response to circumstances arising on a daily
basis, which necessitate critical time-sensitive responses,

13
without the benefit of a full meet and confer process
generally available under normal circumstances. . . .
“As seen by our actions the County has continued to
provide opportunities to meet on issues that have arisen out
of the current emergency. We have held at least two
meetings to address the SNF assignments and work out
logistics, assignments, PPE concerns as well as the plan
going forward as well as providing direct contact to the
managers on site and in charge to deal with issues as they
arise. . . . These notices and meetings are happening on a
regular basis and the County has provided the union with
ample opportunities to voice concerns and suggestions
during this emergency period.”
On a near daily basis between April 7 and 24, the County met with RNPA about
RN assignments to SNFs. RNPA sought to bargain mainly over RN selection, PPE
and other safety issues, housing stipends or pay for hotel stays, staffing ratios, and
hazard pay.8 The County met with RNPA representatives, listened to their suggestions
and ideas, and answered some of their questions. The County did not submit any
written proposals to RNPA.
In the period from April 7-24, the County assigned 17 nurses to Canyon
Springs. After April 24, the County ceased assigning nurses to any SNF, as by that
time the County had helped Canyon Springs secure registry staffing.
On May 1, RNPA e-mailed the County and requested to bargain over the
selection method and deployment list for any future DSW assignments. An hour later,
8 Section 8.17 of the County’s MOU with RNPA, titled Hazard Duty, identifies
six work locations at which RNs earn a premium due to hazardous circumstances.
SNFs are not one of the six specified work locations. County nurses had not
previously worked at privately-owned SNFs, and the County operated only one SNF,
which it acquired in 2019.

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the County responded to RNPA along the same lines as it had written to SEIU,
including the following assertions:
“County employees are required to perform duties as
DSWs, as directed by the County, in the event of a
Disaster. Employees may be assigned by the County to
fulfill emergency action needs outside the course and
scope of their regular job duties. When serving as a
DSW, an employee may also be directed to report to a
different supervisor and/or to work at a different location
than normal in order to fulfill the DSW role.
“The County is also operating under Government Code
Section 3504.5(b) (MMBA emergency exception), pursuant
to the declared local emergency, the County will provide
notice and opportunity to meet ‘at the earliest practicable
time,’ but we have no obligation to meet and confer on
DSW assignments or enter into sideletters regarding such
matters. The County will notify RNPA and, by extension, all
other labor organizations, of its responsible, thoughtful, and
immediate response to circumstances arising on a daily
basis, which necessitate critical time-sensitive responses,
without the benefit of a full meet and confer process
generally available under normal circumstances. We will
continue to provide notice and meet if requested as soon as
practicable when RNPA represented employees are
assigned as DSWs.”
V. 	The County Assigns SEIU-Represented Employees to Motels
The County was concerned about COVID-19’s impact on people experiencing
homelessness, including those living in congregate shelters where residents are in
close physical proximity to one another and therefore at particular risk for contagion.
Exacerbating these concerns, people experiencing homelessness tended to have
more health conditions potentially placing them at greater risk for serious illness or
death if they contracted COVID-19.

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As one response, the County explored offering new options to people
experiencing homelessness, in lieu of congregate shelters. One option the County
considered was the Western Motel, which the County owned. The County also
considered contracting with privately-owned motels.
On or around March 17, the County assigned two SEIU-represented
employees, Arthur Zamarron and Raul Martinez, to prepare the Western Motel for
potential use. Zamarron and Martinez were classified as Facilities Maintenance
Representatives, a classification that normally includes duties such as being a liaison
between tenants and building operations, reviewing building issues, and referring
them for resolution.
The County did not afford SEIU any notice before it assigned SEIU-represented
bargaining unit members to work at motels.
Zamarron told SEIU Chief Steward Jason Dorsey about the motel deployment.
On March 20, Dorsey e-mailed Zamarron’s manager to demand that the County meet
and confer before assigning SEIU bargaining unit employees to work at the Western
Motel.
SEIU met with the County on March 22 to discuss Western Motel assignments.
During the meeting, the County stated that SEIU bargaining unit employees were
merely preparing the motel property to be occupied and that the County would give
notice to SEIU before further deployment.
The Western Motel was vacant on the days Zamarron worked there, and the
County ultimately decided not to offer spots in the motel to people experiencing
homelessness. Instead, the County determined that privately-owned motels were a

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better option. The County contracted with privately-owned motels to house people
experiencing homelessness, and the County contracted with nonprofit organizations to
staff these motels. However, some of the nonprofits did not have enough staff. The
County therefore decided to assign SEIU-represented employees, including
Community Workers, to work at the motels.
On April 13, the County e-mailed four SEIU bargaining unit employees stating
that they were being activated as DSWs and should report the next day to either the
Holiday Inn Express in Sunnyvale or the Hotel E Real in Santa Clara. The County
assigned the employees to conduct door-to-door wellness checks at the motels,
among other duties.
The County did not provide SEIU with prior notice of these assignments. On
April 14, SEIU requested to meet about the assignments and receive advance notice
of further assignments. In or around the same period, SEIU also proposed a side letter
for DSW assignments within the Social Services Agency.
On April 15, the County e-mailed SEIU, in part:
“As to advance notifications, the County is operating under
Government Code Section 3504.5(b) (MMBA emergency
exception), pursuant to the declared local emergency, the
County will provide notice and the opportunity to meet ‘at
the earliest practicable time,’ but we have no obligation to
meet and confer on DSW assignments or enter into
sideletters regarding such matters.”
The County e-mailed SEIU again on April 23, reiterating the County’s position
that while it was required to meet with SEIU at the “earliest practicable time,” and was
doing so, it did not need to “meet and confer on DSW assignments or enter into
sideletters regarding such matters.”

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In early May, the County assigned additional SEIU bargaining unit employees
to work at motels, including Debbie Silva, a Rehabilitation Counselor, and Eric
Martinez, a Probation Community Worker. In her role as a Rehabilitation Counselor,
Silva normally conducted court-ordered jail assessments of incarcerated individuals’
substance use and recommended in-custody treatment programs to the court and
arranged transfer to post-release programs. Silva also fielded calls to the County’s call
center to assist individuals requesting access to the County’s drug and alcohol
services. Silva had worked remotely since 2017. In his role as a Probation Community
Worker, Eric Martinez was assigned to Juvenile Probation, where he maintained
statistics, conducted client meetings and urinalysis collections, and otherwise assisted
the unit as needed.
Silva, Eric Martinez, and other County employees attended a training from
May 5-7 and began working at a Best Western Motel on May 8. The County
contracted with a private nonprofit organization known as Abode Services to run this
motel, but Abode had insufficient staff to do so. SEIU-represented employees back
filled for the missing Abode staff. Their duties, which were entirely new to them,
included: cleaning; performing intakes with new residents suspected of being COVID-
19 positive; taking residents’ temperatures; delivering food; conducting wellness
checks; bagging belongings of residents who had abandoned their rooms or been
evicted; and researching information on housing options, including by calling to check
on income requirements, availability, and waitlists. Employees received little to no
training in most of these tasks, including on procedures for dealing with needles and
other hazardous materials, even though they encountered such risks as part of their

18
newly assigned duties. In contrast, the County did train employees on one new duty:
how to administer naloxone to residents experiencing an opioid overdose.
Silva and Eric Martinez were still working at the Best Western Motel as of the
August hearing dates in this matter. At that point the County had extended their
assignments to December 31.
Between April 20 and early May, the County met with SEIU almost daily to
discuss DSW assignments. During those meetings, SEIU and the County discussed
the role of the assignments, PPE, interactions with motel residents, trash removal,
laundry, food delivery, shift schedules, and other issues. While the County answered
some of the questions SEIU posed and listened to SEIU’s concerns, the County
asserted it had no duty to meet and confer regarding the assignment of bargaining unit
workers to motels.
The Unions filed this charge on May 6, and OGC issued the complaint on
June 2. The parties participated in 19 formal hearing days, by video conference,
between August 2020 and March 2021. The parties then filed two rounds of post-
hearing briefs in September and October 2021. The ALJ issued the proposed decision
on January 23, 2023. All parties filed exceptions and responses. The predominant
issues on appeal involve the County’s asserted emergency defense.9
9 The Unions requested oral argument. The Board typically denies such
requests if there is an adequate record, the parties had a reasonable opportunity to
present briefs, and the issues before the Board are sufficiently clear that oral
argument is unnecessary. (City of Culver City (2020) PERB Decision No. 2731-M,
p. 2, fn. 2.) We deny the request for oral argument based on these criteria and given
that this decision follows several others in which the Board explained employers’
bargaining duties when the COVID-19 pandemic commenced.

19
DISCUSSION
When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.)
However, the Board need not address issues that the proposed decision has
adequately addressed or that would not impact the outcome. (Ibid.)
In Parts I and II, we conclude that the Unions established a prima facie case
that the County violated its duty to bargain over DSW-related decisions and the effects
of its decision to scale back services at its medical clinics. Part III analyzes the
County’s emergency defense. There, we conclude that the need to save lives meant
that the County’s bargaining duty did not include a requirement for it to reach impasse
or agreement before taking emergency measures, but the County nonetheless failed
to comply with its continuing duty to provide notice and to bargain in good faith as
practicable. Finally, Part IV briefly explains the remedies warranted in these
circumstances.
I. 	Decision Bargaining Claims: Prima Facie Case
To establish a prima facie case that a respondent employer violated its decision
bargaining obligation, an exclusive representative must prove: (1) the employer
changed or deviated from the status quo; (2) the change or deviation concerned a
matter within the scope of representation; (3) the change or deviation had a
generalized effect or continuing impact on represented employees’ terms or conditions
of employment; and (4) the employer reached its decision without first providing
adequate advance notice of the proposed change to the employees’ union and
bargaining in good faith over the decision, at the union’s request, until the parties

20
reached an agreement or a lawful impasse.10 (Bellflower Unified School District (2021)
PERB Decision No. 2796, p. 9 (Bellflower).)
While the County’s exceptions are mainly premised on its emergency defense,
it also challenges the first two elements of the Unions’ prima facie case. We consider
each in turn.
A. 	Change in Status Quo
There are three primary means of establishing that an employer changed or
deviated from the status quo. (Bellflower, supra, PERB Decision No. 2796, p. 10.)
Specifically, a charging party satisfies this element by showing any of the following:
(1) a change in or deviation from a written agreement or written policy; (2) a change in
established past practice; or (3) a newly created policy or application or enforcement
of existing policy in a new way. (Ibid.) The record here establishes all three types of
changes.
1. 	The County’s New DSW Policies
As noted above, the 2020 documents comprised three new or updated policies.
We focus on the first two, because the third fell outside the scope of representation as
it was related to internal procedures and only incidental to employment conditions (see
post at pp. 26-27 & fn. 12), and SEIU does not assert a claim for failure to bargain
over the effects of that County action.
10 To “bargain” has the same meaning as to “meet and confer” or to “negotiate,”
and we use the terms interchangeably. (Oxnard Union High School District (2022)
PERB Decision No. 2803, p. 30, fn. 14. (Oxnard).)

21
In the first document, the County significantly expanded its pre-existing 2008
policy and materially changed its meaning. The County eliminated the 2008 policy’s
assurance that in an emergency, employees needed to take care of their families and
ensure their safety first. And the County added very different language warning
employees that they could be terminated for failure to accept assigned DSW duties.
Meanwhile, the second document is a quintessential example of a newly created
policy where there was none before, as it lays out multiple rules specific to COVID-19,
including the rule that employees could not refuse a DSW assignment because they
need to protect a medically vulnerable family member from COVID-19.
The County argues that it made no material change because, it claims,
employees were subject to discipline for refusing DSW assignments even prior to April
2020. The County bases this argument mainly on testimony from its former Chief
Operating Officer, Miguel Marquez. However, Marquez merely answered in the
affirmative when he was asked whether, before the pandemic, County employees
were subject to discipline for refusing to carry out tasks assigned to them by a
supervisor. Marquez’s vague and conclusory testimony regarding prior discipline is not
tied to refusal of a DSW assignment, or to the DSW policy at all. Even assuming for
the sake of argument that Marquez intended to reference refusing a DSW assignment,
we would still find a material change. A reasonable employee would find it material to
receive explicit notice of the threat of discipline for refusing a DSW assignment—even
to protect a medically vulnerable family member. This is especially true given that the

22
prior version of the policy assured employees that they should prioritize protecting
their families.11
2. 	The County’s SNF and Motel Assignments
A charging party can establish that new job duties materially deviated from the
status quo by showing that new duties or assignments are not “reasonably
comprehended” within employees’ prior duties or assignments. (State of California
(California Correctional Health Care Services) (2022) PERB Decision No. 2823-S,
p. 10 (CCHCS); County of Santa Clara (2022) PERB Decision No. 2820-M, p. 7;
Cerritos, supra, PERB Decision No. 2819, pp. 30-31.) “Reasonably comprehended” is
an objective standard that refers to what a reasonable employee would comprehend
based on all relevant circumstances, including, but not limited to, past practice,
training, and job descriptions. (CCHCS, supra, p. 10; County of Santa Clara, supra,
PERB Decision No. 2820-M, p. 6, citing Rio Hondo Community College District (1982)
PERB Decision No. 279, pp. 17-18 [while catchall language in job description does not
overcome evidence of contrary past practice, PERB interprets job descriptions in the
context of employees’ overall role].) To apply the “reasonably comprehended”
standard, we compare past duties or assignments to new duties or assignments,
through the eyes of a reasonable employee. (County of Santa Clara, supra, PERB
Decision No. 2820-M, p. 8.)
11 Employees required to care for certain family members can use leave, but
there are limits on the length of such leaves and on the compensation that employees
receive while on leave.

23
The County’s DSW reassignments were not “reasonably comprehended” within
employees’ prior assignments. Reasonable nurses would see a material change in
being assigned to work under supervision of private sector managers at a non-County
SNF, where nurses were unfamiliar with the standards and procedures they were
expected to follow. Nor was working at motels reasonably comprehended within SEIU
bargaining unit employees’ existing job duties. The County did not establish that any
of the employees assigned to motels had ever worked in motels or performed any
(much less all) of the duties assigned there. And the Unions called witnesses who
established the opposite. For these reasons, the DSW assignments to SNFs and
motels changed the status quo.
B. 	Scope of Representation
MMBA section 3504 defines the scope of representation as including “wages,
hours, and other terms and conditions of employment, except, however, that the
scope of representation shall not include consideration of the merits, necessity, or
organization of any service or activity provided by law or executive order.” Where
precedent is not already clear on whether a matter falls within the scope of
representation, we begin by placing the matter in one of three categories, each with
its own implications for the scope of representation: (1) “decisions that ‘have only an
indirect and attenuated impact on the employment relationship’ and thus are not
mandatory subjects of bargaining,” such as advertising, product design, and
financing; (2) “decisions directly defining the employment relationship, such as
wages, workplace rules, and the order of succession of layoffs and recalls,” which are
“always mandatory subjects of bargaining”; and (3) “decisions that directly affect

24
employment, such as eliminating jobs, but nonetheless may not be mandatory
subjects of bargaining because they involve ‘a change in the scope and direction of
the enterprise’ or, in other words, the employer’s ‘retained freedom to manage its
affairs unrelated to employment.’” (City and County of San Francisco (2022) PERB
Decision No. 2846-M, pp. 15-18 (San Francisco), citing International Assn. of Fire
Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th
259, 272-273 (Richmond Firefighters).)
For decisions in the third category, bargaining is required if “the benefit, for
labor-management relations and the collective-bargaining process, outweighs the
burden placed on the conduct of the business.” (Richmond Firefighters, supra,
51 Cal.4th at p. 273.) We apply this balancing test in two steps. First, looking at the
matter from the perspective of a reasonable employee, we assess whether the
decision’s implementation will significantly and adversely impact wages, hours, or
other terms or conditions of employment. (San Francisco, supra, PERB Decision
No. 2846-M, p. 18, citing Claremont Police Officers Assn. v. City of Claremont (2006)
39 Cal.4th 623, 638; County of Sonoma (2023) PERB Decision No. 2772a-M, p. 16
(Sonoma).) If there is a significant and adverse effect, we must resolve whether “the
employer’s need for unencumbered decision-making in managing its operations is
outweighed by the benefit to employer-employee relations of bargaining about the
action in question.” (San Francisco, supra, PERB Decision No. 2846-M, pp. 18-19.)
For many types of decisions, we need not “reinvent the wheel” by applying the
Richmond Firefighters framework from scratch, because precedent establishes
subject-specific standards that show how the framework applies to a given topic.

25
(Accelerated Schools, supra, PERB Decision No. 2855, p. 15; San Francisco, supra,
PERB Decision No. 2846-M, p. 18, fn. 15.) One such standard, relevant here, is that
material changes to job assignments and duties generally fall within the scope of
representation. (County of Santa Clara, supra, PERB Decision No. 2820-M, p. 7;
Cerritos, supra, PERB Decision No. 2819, pp. 30-31.) This standard includes an
exception if external law leaves the employer no discretion, but if external law does
not completely resolve the issue, the employer must bargain to the extent of its
retained discretion. (County of Sacramento (2020) PERB Decision No. 2745-M,
pp. 17-18.)
Here, we have considered the County’s argument based on an external law,
CESA, which fully resolves that County employees are DSWs. Accordingly, the
employees’ status as DSWs is not subject to bargaining. But the CESA leaves the
County with substantial discretion. For instance, it neither mandated the changes the
County chose to make nor the safeguards and compensation the Unions sought.
Thus, the CESA does not eliminate the duty to bargain. Nor did the Unions seek to
bargain over matters that CESA settled. For instance, RNPA wrote the County as
follows: “County Employees are required to perform duties as the DSW. We are not
denying that duty. We need to meet and ensure that all safety precautions for our
members will be considered in addition to hours and working conditions. We need to
meet at the earliest practicable time.”
A second subject-specific standard, also relevant here, relates to disciplinary
rules and procedures. Because such matters lie at the core of traditional labor
relations, workplace policies generally fall within the scope of representation if they

26
materially alter employees’ disciplinary risks. (Sonoma, supra, PERB Decision
No. 2772a-M, p. 24; Fairfield-Suisun Unified School District (2012) PERB Decision
No. 2262, p. 12; Trustees of the California State University (2003) PERB Decision
No. 1507-H, adopting proposed decision at pp. 12-13; State of California (Water
Resources Control Board) (1999) PERB Decision No. 1337-S, pp. 7-8.) This
standard, too, has an exception: a new policy does not trigger decision bargaining—
even though it has disciplinary consequences—if those consequences are incidental
to a decision unrelated to employee or labor relations. San Bernardino Community
College District (2018) PERB Decision No. 2599 (San Bernardino) noted this
difference in discussing a college’s decision to track a security officer’s vehicle using
GPS and to use the data for discipline. (Id. at pp. 8-12.) The college’s primary goal
was to check if the employee was leaving his designated area. (Id. at pp. 10-11,
fn. 8.) The Board contrasted that employment-related decision with one in which an
employer’s decision to install surveillance equipment is “not primarily about
monitoring employees while they provide public services, and is instead installed, for
instance, to deter members of the public from committing crimes, to apprehend such
persons who do perpetrate crimes, to protect public property, or to keep staff and
members of the public safe.” (Ibid.) In the latter circumstance, the employer need only
bargain effects, such as how surveillance might be used in relation to evaluations or
discipline. (Ibid.)
Here, two of the three 2020 documents made an employment-oriented change
by adding a disciplinary warning and cutting language that had urged employees to

27
take care of their families first.12 The County’s SNF and motel assignments similarly
were focused on employment. It is not enough for the County to argue that it made
these changes to serve the public better. Indeed, in San Bernardino, supra, PERB
Decision No. 2599, the employer’s goal in placing a GPS on the security officer’s truck
was ultimately to improve public services by monitoring the officer. (Id. at pp. 10-11,
fn. 8.) Because it sought to accomplish its purpose by changing an employment term
or condition, the employer had a decision bargaining duty. (Ibid.) In contrast, where
the purpose of a change is to safeguard the public as a general matter, not mediated
mainly through altering an employment practice, then only effects bargaining is
required. (Ibid.; Sonoma, supra, PERB Decision No. 2772a-M, pp. 24-25; County of
Santa Clara (2021) PERB Decision No. 2799-M, pp. 21-22.)
Thus, the relevant subject-specific standards demonstrate why the County’s
new assignments and policies were critical to defining the employment relationship
rather than altering the overall direction of the County’s enterprise, meaning the
changes fall within the second Richmond Firefighters category.
In the alternative, however, even if we were to “reinvent the wheel” by applying
the Richmond Firefighters framework from scratch, and even assuming for the sake of
argument that the County’s changes fall within the third Richmond Firefighters
category, we would reach the same conclusion. First, the SNF and motel assignments
had a significant and adverse effect on employment conditions, a point that the County
12 The third document fell outside the scope of representation as it was related
to internal procedures when County departments interacted with each other regarding
DSW assignments, and it was only incidental to employment terms and conditions.

28
does not contest. A reasonable County nurse would have had this belief based on the
County’s sudden change in DSW policies and related assignment to work under
different policies and procedures in a privately-owned SNF during the pandemic, with
no County supervision, inadequate training, and insufficient PPE. The adverse effect
was even more significant for employees assigned to motels. At the Best Western
Motel, for instance, the County imposed new duties without adequate training even
though the new duties were unrelated to the employees’ prior duties and exposed
them to COVID-19.13
Second, we balance the County’s interests with the Unions’ interest in
protecting its members through training, PPE, and other safeguards, as well as in
bargaining for hazard pay or other compensation for the DSW assignments at private
SNFs and motels. In assessing the County’s interest, we consider assignment and
disciplinary issues as they exist in general, not during an emergency. This is because
the emergency characteristics of the situation come into play later, when we consider
the County’s emergency defense and decide which steps (if any) the County was
permitted to take without completing negotiations. Thus, although “time may be of the
essence during a pandemic, that consideration goes to the limitations on bargaining
obligations when an emergency compels an employer to act rapidly, which we discuss
in [a] following section; it does not, however, turn the topic into a non-mandatory
subject of bargaining.” (Oxnard, supra, PERB Decision No. 2803, p. 43.) The County’s
interest in protecting the public is therefore satisfied (see pp. 32-37, post), and fair
13 While the County asserts that reassigned employees would have risked
infection in their regular assignments, their new assignments increased the risk.

29
collective bargaining is needed to satisfy the urgent union interest in protecting and
compensating the essential workers serving the public during a once-in-a-century
pandemic.
The County posits that the health and safety issues and other working
conditions associated with the DSW assignments were not susceptible to resolution
through collective bargaining because those issues would be moot by the time
bargaining became practicable. However, this argument misunderstands the core duty
at stake which we explain in full post at pages 33-34: bargaining was practicable even
in the early weeks of the pandemic, and the emergency did not shield the County from
that duty; rather, the pandemic merely allowed the County to take certain emergency
measures before bargaining was complete.
Finally, this case differs from Regents of the University of California (2021)
PERB Decision No. 2783-H (Regents), where the Board held that an employer had a
duty to bargain effects, but not its decision, before implementing a flu vaccination
policy during the COVID-19 pandemic. (Id. at pp. 27-31.) A vaccine requirement is
fundamentally different given herd immunity principles, and indeed we held that the
policy was not amenable to bargaining because it was not employee-specific, as it
applied to everyone who studied, lived, or worked at the University. (Id. at p. 26.)
Moreover, the subjects that the Unions in this case sought to negotiate can equally be
seen as effects of the DSW assignments, yet the County refused to bargain over side
letters on those topics. Thus, even were we inclined to find only an effects bargaining
obligation as in Regents, the County would still have violated the MMBA.

30
For the foregoing reasons, the Unions established a prima facie case that the
County failed to afford them adequate notice and opportunity to bargain before
implementing the first two 2020 documents related to DSW policies and issuing its
SNF and motel DSW assignments.
II. 	Effects Bargaining Claim: Prima Facie Case
The MMBA’s duty to bargain in good faith extends to the implementation and
effects of a decision that has a foreseeable effect on matters within the scope of
representation, even where the decision itself falls outside the scope. (County of
Santa Clara (2019) PERB Decision No. 2680-M, pp. 11-12.) Thus, even when an
employer has no obligation to bargain over a particular decision, it nonetheless must
provide notice and an opportunity to meet and confer over any reasonably foreseeable
effects the decision may have on matters within the scope of representation. (Ibid.)
The employer violates its duty to bargain if it fails to provide adequate advance notice,
and in such circumstances the union need not demand to bargain effects as a
prerequisite to filing an unfair practice charge. (Id. at p. 12.)
For the sake of brevity, we use the word “effects” as shorthand for a broad
category that comprises both the effects and implementation of a decision on a non-
mandatory bargaining subject. (Richmond Firefighters, supra, 51 Cal.4th at pp. 265,
276; City of Glendale (2020) PERB Decision No. 2694-M, p. 54, fn. 12; County of
Santa Clara, supra, PERB Decision No. 2680-M, p. 12; City of Palo Alto (2017) PERB
Decision No. 2388a-M, p. 40; County of Santa Clara (2013) PERB Decision
No. 2321-M, p. 25, fn. 16.) Negotiations over implementation typically include
proposed alternatives. (Accelerated Schools, supra, PERB Decision No. 2855, p. 14,

31
fn. 8; Oxnard, supra, PERB Decision No. 2803, p. 52; County of Santa Clara, supra,
PERB Decision No. 2799-M, p. 27.) For instance, even though an employer has no
duty to bargain over a decision to lay off employees, the California Supreme Court has
noted the scope of required effects bargaining includes “the timing of layoffs and the
number and identity of the employees affected.” (Richmond Firefighters, supra, 51
Cal.4th at pp. 265 & 276.) Thus, one purpose of effects bargaining is to permit the
exclusive representative an opportunity to persuade the employer to consider
alternatives that may diminish the impact of the decision on employees. (Accelerated
Schools, supra, PERB Decision No. 2855, p. 14, fn. 8; Oxnard, supra, PERB Decision
No. 2803, p. 52; County of Santa Clara, supra, PERB Decision No. 2799-M, p. 27.)
Here, no party has asked us to review the ALJ’s conclusion that the County had
to bargain effects—but not its decision—when it temporarily scaled back services at
certain clinics. Moreover, the County concedes that it implemented this change
without providing advance notice to either Union. In the absence of advance notice,
the Unions had no duty to demand negotiations and the County cannot assert waiver
as a defense. (Oxnard, supra, PERB Decision No. 2803, p. 51; County of Santa Clara,
supra, PERB Decision No. 2321-M, p. 30.)
Ultimately, the outcome of the effects bargaining claim, like the above-
discussed decision bargaining claims, turns on the County’s emergency defense, to
which we now turn.
III. 	The Emergency Defense
The County asserts that once its governing body declared a COVID-19 related
emergency, MMBA section 3504.5 “effectively plac[ed] a stay on the bargaining

32
obligation.” That belief, which the County asserted in its dealings with the Unions
throughout the relevant timeframe, is incorrect and caused the County to violate the
MMBA. As we proceed to explain, the County had a duty to bargain with the Unions
throughout the relevant timeframe, but the emergency nature of the pandemic allowed
it to take emergency measures even during such negotiations.
A. 	Employers’ Rights and Duties in Emergency Circumstances
As a preliminary matter, it bears noting that while the County frames its defense
as arising under MMBA section 3504.5, that section’s explicit terms apply only to
changes that an employer’s governing board makes by adopting an “ordinance, rule,
resolution, or regulation.”14 Here, the County’s Board of Supervisors declared an
emergency on February 10 but did not enact any of the changes at issue. Rather,
County managers did so several months later. This is of no moment, however,
because under all PERB-administered statutes, a non-statutory business necessity
defense is available for any emergency measure an employer must take, no matter
how accomplished. (Imperial Irrigation District (2023) PERB Decision No. 2861-M,
pp. 55-56 (Imperial).)
14 MMBA section 3504.5, subdivision (b) provides:
“In cases of emergency when the governing body or the
designated boards and commissions determine that an
ordinance, rule, resolution, or regulation must be adopted
immediately without prior notice or meeting with a
recognized employee organization, the governing body or
the boards and commissions shall provide notice and
opportunity to meet at the earliest practicable time following
the adoption of the ordinance, rule, resolution, or regulation.”

33
The same test applies, irrespective of whether an employer asserts the MMBA’s
statutory emergency defense, the non-statutory business necessity test, or both: An
employer first must establish: (1) an actual emergency that (2) leaves no real
alternative to the emergency measure(s) taken and (3) allows no time for meaningful
negotiations before taking such action(s). (Imperial, supra, PERB Decision
No. 2861-M, pp. 56 & 60.) Here, the County established that its actions were urgently
needed to save lives. Accordingly, while normally the County could not act on a
mandatory subject without first reaching an agreement with the exclusive
representative or reaching an impasse and exhausting impasse procedures
(Bellflower, supra, PERB Decision No. 2796, p. 9), here the County’s duties did not
include waiting for impasse or agreement before acting.
But the fact that the defense applies does not completely absolve the employer
of its duty to afford a union with notice and the opportunity to bargain; rather, the
employer must afford the union these rights “to the extent that the situation permits,
although an impasse is not necessary.” (Santa Clara County Correctional Peace
Officers’ Assn., Inc. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, 1032.)
Thus, although an employer facing a true emergency can implement emergency
measures before it reaches an impasse or an agreement, the employer must provide
notice and opportunity to bargain to the extent practicable at all times. (Imperial,
supra, PERB Decision No. 2861-M, p. 56.) For instance, “when a devastating
earthquake forced two hospitals to close and ‘swamped’ the only functioning hospital
in West Los Angeles, the Board found there was time to bargain in good faith over
staffing needs that developed over the ensuing weeks and months, and an employer

34
violated its bargaining obligation by failing to do so.” (Oxnard, supra, PERB Decision
No. 2803, p. 45, citing Regents of the University of California (1998) PERB Decision
No. 1255-H, adopting proposed decision at pp. 8, 35-37.)
Imperial, supra, PERB Decision No. 2861-M applied this important rule, holding
as follows:
“[E]ven when a sudden emergency resulting from
circumstances beyond an employer’s control leaves it no
alternative but to take immediate action, there remains an
obligation to bargain in good faith as time allows. By
asserting from the onset of negotiations that it had no
obligation to bargain . . . and repeating that sentiment, the
District disregarded the above precedent holding that even
when an emergency allows temporary unilateral action, it
does not simply extinguish the duty to bargain.”
(Id. at p. 53 [citation omitted].)
Prior to Imperial, we noted the same principle in Oxnard, supra, PERB Decision
No. 2803: “The onset of the COVID-19 pandemic presented an emergency that
temporarily curtailed the District’s bargaining obligations because the District had to
act almost overnight to protect staff, students, and their families from a transmissible,
life-threatening virus.” (Id. at p. 45.) From the briefing in this matter, it appears that
the word “curtailed” contained sufficient ambiguity that the above passage from
Oxnard required clarification, which Imperial subsequently provided. The meaning, as
noted above, is that an employer facing a true emergency can take emergency
measures without first reaching agreement or impasse, but the duty to afford notice
and to bargain in good faith continues as much as is practicable, both before and
after the employer implements emergency measures.

35
Finally, because an emergency is not a static event, changes taken in good
faith reliance on a necessity defense must be limited to the timeframe that the
emergency requires. (Imperial, supra, PERB Decision No. 2861-M, p. 56; Oxnard,
supra, PERB Decision No. 2803, p. 45.) Thus, when the emergency lapses, the
employer has a duty to honor a union’s request to rescind emergency measures the
employer implemented without completing negotiations.
B. 	The County’s Legal Misinterpretation
Although the County could take necessary measures to save lives without first
reaching an impasse or agreement with the Unions, it nonetheless had a duty to
provide notice and an opportunity to bargain in good faith to the extent practicable in
the particular circumstances. Unfortunately, the County violated the MMBA by
wrongly asserting, throughout the relevant timeframe, that it had no duty to engage in
good faith bargaining toward potential side letters of agreement. This was incorrect,
because COVID-19 required rapid action, but did not eliminate the need to bargain in
good faith even while taking such actions. Indeed, other California public entities
found it possible to bargain and reach written agreements during the difficult early
months of the pandemic (Oxnard, supra, PERB Decision No. 2803, p. 57; see also id.
at pp. 4-19), and the record does not establish adequate reasons why the County was
any different.

36
The County did meet with the Unions, on a near-daily basis in several of the
pandemic’s early weeks.15 But a party cannot satisfy its duty to bargain in good faith
merely by meeting and discussing a topic as it explicitly denies any duty to bargain.
(City of San Ramon, supra, PERB Decision No. 2571-M, p. 15 [agreeing to meet for
the sake of good labor relations does not satisfy bargaining obligation where employer
denies obligation to bargain]; Rio Hondo Community College District (2013) PERB
Decision No. 2313, adopting proposed decision at p. 5 [same].)
This case provides one illustration as to why a party cannot satisfy its duty to
bargain by denying it has such a duty while agreeing to meet as a courtesy. When the
Unions proposed side letters, thereby attempting to put agreements into writing or at
least crystallize the parties’ respective positions to open the door toward later
compromises, the County stated that it would not engage in such negotiations. Rather,
the County characterized the meetings as an opportunity for the Unions to “voice
concerns and suggestions.”
Certain parts of the County’s legal interpretation were close to accurate. For
instance, in its April 23 e-mail to SEIU, the County wrote that it “will not bargain to
impasse over its COVID-19 responsive measures at this time.” The County was
correct to the extent this referenced its right to take emergency measures without first
bargaining to impasse or agreement. And the same e-mail correctly noted that the
County was making itself available to meet. However, because the e-mail also
15 The County’s ability to engage in near-daily meetings with the Unions further
undermines its claim that time did not permit bargaining near the outset of the
pandemic.

37
reiterated the County’s refusal to bargain over side letter terms, it was part of the
County’s consistent policy blocking the Unions from asserting their rights to bargain as
practicable over all aspects of DSW assignments, including selection of employees,
training, staffing ratios, PPE and other safety measures, workload, leaves or
accommodations for special circumstances, and hazard pay.16
The County’s flat denial of its obligation to bargain means this case does not
turn on more nuanced determinations as to how early it was practicable to give notice
of the emergency measures at issue. Nonetheless, the record shows no reason why
the County could not have generally provided the Unions notice when the County was
still considering these measures. In some instances, this would have allowed
negotiations to begin before a decision was finalized. Even when that was not
possible, it would typically have allowed at least a preliminary bargaining session (if
not more) before employees were notified. And even had the parties been unable to
reach agreements, earlier notice would have made it clear the County was doing all it
could to bargain, leading to more harmonious labor relations in a difficult period.17
IV. 	Remedial Issues
A failure to comply with bargaining obligations during an emergency can
warrant an order to bargain, make-whole relief, rescission of changes, a
16 As noted above, the parties had existing MOU provisions on float
assignments and hazard pay but had not contemplated MOU provisions for
assignments to private SNFs and motels during a pandemic, making those obvious
points for the parties to negotiate.
17 Among many examples of issues that could have been ameliorated was
Mana-Ay working a day at The Ridge even though the County was never able to reach
a staffing agreement with The Ridge.

38
cease-and-desist order, and a notice-posting order, among other remedies. (Imperial,
supra, PERB Decision No. 2861-M, pp. 64-69.)
Here, we first order the County to bargain in good faith and cease and desist
from further violations. We also order the County to post and communicate the
attached notice, both physically and electronically. Given the sweeping nature of the
County’s assertion of emergency powers to disregard the MMBA, we order that the
physical posting should occur County-wide.
There is no claim for make-whole relief before us, as the proposed order did not
provide for such relief and the Unions do not challenge that omission. Nevertheless,
nothing in this decision bars the parties from negotiating make-whole relief, either as
part of complying with the bargaining order or otherwise.
Finally, we do not consider whether rescission would be appropriate even in the
face of continuing emergency circumstances, as it is undisputed that the COVID-19
emergency has lapsed. Because changes taken in reliance on an emergency defense
must be limited to the timeframe that the emergency requires (see ante at p. 35), the
County must honor any request that one or both Unions may make to rescind, as to
their respective bargaining units, either the SNF and motel assignments, one or both
of the first two 2020 documents, or any combination thereof.
ORDER
Based upon the foregoing factual findings and legal analysis, and the entire
record, the Public Employment Relations Board (PERB) finds that the County of Santa
Clara violated the Meyers-Milias-Brown Act (MMBA), Government Code sections
3504.5, subdivision (b), 3505, and 3506.5, subdivision (c), when it failed and refused

39
to afford Registered Nurses Professional Association (RNPA) and Service Employees
International Union Local 521 (SEIU) (collectively, the Unions) notice and an
opportunity to meet and confer in good faith over: (1) assignments to skilled nursing
facilities (SNFs) and motels; (2) new and amended disaster service worker (DSW)
policies; and (3) the effects of scaling back services at certain medical clinics. The
County also violated MMBA section 3506.5, subdivision (c) by failing to provide
information the Unions requested. Finally, the County’s conduct also derivatively
interfered with the rights of bargaining unit employees to be represented by the Unions
and derivatively denied the Unions’ right to represent bargaining unit employees in
violation of MMBA sections 3506 and 3506.5, subdivisions (a) and (b). All other claims
in the charge and the complaint are DISMISSED.
Pursuant to MMBA section 3509, subdivision (b), we hereby ORDER that the
County, its governing board and its representatives shall, after this decision is no
longer subject to appeal:
A. 	CEASE AND DESIST FROM:
1. 	Failing or refusing to bargain in good faith with the Unions as
required under the MMBA.
2. 	Interfering with the rights of bargaining unit employees to be
represented by the Unions.
3. 	Denying the Unions their right to represent bargaining unit
employees.

40
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE MMBA:
1. 	Upon request by RNPA and/or SEIU, bargain in good faith with the
requesting Union(s) over DSW assignments and the two documents issued on or
around April 13, 2020, titled as follows: “County Employees Serving as Disaster
Service Workers,” and “Disaster Service Worker County Employees Frequently Asked
Questions Sheet COVID-19 Pandemic.”
2. 	To the extent requested by RNPA and/or SEIU, rescind any
COVID-related DSW assignments still in effect involving bargaining unit employees of
the requesting Union(s).
3 	Upon request by RNPA and/or SEIU, rescind one or both of the
two documents issued in April 2020 that are listed by name in paragraph B(1), as to
bargaining unit employees represented by the requesting Union(s).
4. 	Upon request by RNPA and/or SEIU, bargain in good faith with the
requesting Union(s) over the effects of the County’s decision to scale back services at
medical clinics in March and/or April 2020.
5. 	Within 30 days of a request from SEIU, provide SEIU with the
following information: the results of the survey sent to RNPA and SEIU bargaining unit
employees titled “COVID-19 Emergency: County of Santa Clara Employee/Disaster
Service Worker,” the process for which the County intended to seek volunteers for the
deployment to SNFs, what measures Canyon Springs had made to address their
staffing shortage, and what measures the County had taken to secure registry
services.

41
6. 	Within 30 days of a request from RNPA, provide RNPA with the
following information, if these documents are within the County’s possession: The
ATD exposure control plans and Cal/OSHA logs for Canyon Springs and The Ridge
for the applicable time period.
7. 	Post at all County work locations copies of the Notice attached
hereto as an Appendix. The Notice must be signed by an authorized agent of the
County, indicating that the County will comply with the terms of this Order. Such
postings shall remain in place for a period of 30 consecutive workdays. The County
shall take reasonable steps to ensure that the Notice is not altered, defaced, or
covered with any other material. In addition to physically posting the Notice, the
County shall communicate it by electronic message, intranet, internet site, and other
electronic means the County uses to communicate with employees.18
8. 	Notify OGC of the actions the County has taken to follow this
Order by providing written reports as directed by OGC and concurrently serving such
reports on RNPA and SEIU.
Members Paulson and Nazarian joined in this Decision.
18 Any of the parties may ask PERB’s Office of the General Counsel (OGC) to
alter or extend the posting period, require further notice methods, or otherwise
supplement or adjust this Order to ensure adequate notice. Upon receipt of such a
request, OGC shall solicit input from all parties and, if warranted, provide amended
instructions to ensure adequate notice.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-1796-M, Registered Nurses
Professional Association & Service Employees International Union Local 521 v.
County of Santa Clara, in which all parties had the right to participate, the Public
Employment Relations Board (PERB) has found that the County of Santa Clara
violated the Meyers-Milias-Brown Act (MMBA), Government Code section 3500 et
seq. by failing and refusing to afford Registered Nurses Professional Association
(RNPA) and Service Employees International Union Local 521 (SEIU) (collectively, the
Unions) notice and an opportunity to meet and confer in good faith over:
(1) assignments to skilled nursing facilities (SNFs) and motels; (2) new and amended
disaster service worker (DSW) policies; and (3) the effects of scaling back services at
certain medical clinics. The County also violated the MMBA by failing to provide
information the Unions requested.
As a result of this conduct, we have been ordered to post this Notice, and we
will:
A. 	CEASE AND DESIST FROM:
1. 	Failing or refusing to bargain in good faith with the Unions as
required under the MMBA.
2. 	Interfering with the rights of bargaining unit employees to be
represented by the Unions.
3. 	Denying the Unions their right to represent bargaining unit
employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE MMBA:
1. 	Upon request by RNPA and/or SEIU, bargain in good faith with the
requesting Union(s) over DSW assignments and the two documents issued on or
around April 13, 2020, titled as follows: “County Employees Serving as Disaster
Service Workers,” and “Disaster Service Worker County Employees Frequently Asked
Questions Sheet COVID-19 Pandemic.”
2. 	To the extent requested by RNPA and/or SEIU, rescind any
COVID-related DSW assignments still in effect involving bargaining unit employees of
the requesting Union(s).

2
3 	Upon request by RNPA and/or SEIU, rescind one or both of the
two documents issued in April 2020 that are listed by name in paragraph B(1), as to
bargaining unit employees represented by the requesting Union(s).
4. 	Upon request by RNPA and/or SEIU, bargain in good faith with the
requesting Union(s) over the effects of the County’s decision to scale back services at
medical clinics in March and/or April 2020.
5. 	Within 30 days of a request from SEIU, provide SEIU with the
following information: the results of the survey sent to RNPA and SEIU bargaining unit
employees titled “COVID-19 Emergency: County of Santa Clara Employee/Disaster
Service Worker,” the process for which the County intended to seek volunteers for the
deployment to SNFs, what measures Canyon Springs had made to address their
staffing shortage, and what measures the County had taken to secure registry
services.
6. 	Within 30 days of a request from RNPA, provide RNPA with the
following information, if these documents are within the County’s possession: The
ATD exposure control plans and Cal/OSHA logs for Canyon Springs and The Ridge
for the applicable time period.
Dated: _____________________ 	County of Santa Clara
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.